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Court of AppealPartially AllowedCriminal Appeal 4 of 2018· [2022] KECA 1249 (KLR)

Monyoncho v Republic

Court of Appeal

9 November 2022

PKP O Kiage FTF Tuiyott JNJoel Ngugi

286 words in judgment

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The bottom line

Kenya's Court of Appeal cut a prisoner's sentence to time already served, releasing him immediately even though his conviction stayed intact.

What this practically means

Executive summary

This brief Court of Appeal judgment, delivered at Kisii on 9 November 2022 by a bench of Kiage, Tuiyott and Ngugi, JJA, disposed of a first appeal from the High Court at Nyamira (Nangillah, J.) dated 22 April 2016 in HCCRA No. 16 of 2015. At the hearing, counsel for the appellant, Mr Mokaya, after extended argument on the question of the complainant's age, conceded that the proper course was to withdraw the appeal against conviction, and did so. That left only the ground of sentence. The Republic, through counsel Mr Okango, conceded that the sentence imposed on the appellant could be reduced to ten years' imprisonment. The court, having considered the appeal and the submissions, held that the appeal was for allowing on sentence. It set aside the sentence imposed and substituted an order that the appellant serve only the term already served. It further ordered that the appellant be set at liberty forthwith unless otherwise lawfully held. The conviction therefore stands undisturbed, while the sentence was varied in the appellant's favour, going beyond the State's concession of ten years. No costs order was made, no authorities were cited, and the judgment contains a single unanimous opinion of the court.

Key legal issues

Withdrawal of appeal against conviction

Holding

Counsel for the appellant conceded and withdrew the appeal against conviction, leaving only the sentence ground for determination.

Reasoning

After lengthy argument on the complainant's age, appellant's counsel accepted that the proper course was to withdraw the appeal against conviction. The court accepted the withdrawal, which narrowed the appeal to sentence alone.

p. 1

Reduction of sentence

Holding

The appeal on sentence was allowed; the sentence imposed was set aside and substituted with the term already served, resulting in the appellant's immediate release.

Reasoning

The Republic, through counsel Mr Okango, graciously conceded that the sentence could be reduced to 10 years imprisonment. On consideration of the appeal and submissions, the court went further than the concession, setting aside the sentence and substituting the term already served, and ordered the appellant set at liberty forthwith.

p. 1

Legal principles established

Where the respondent concedes a reduction of sentence and the court finds the appeal merited on sentence, the appellate court may set aside the sentence and substitute a lesser term, including time already served.

Court orders

1.The appeal against conviction was withdrawn by the appellant's counsel
2.The sentence imposed on the appellant is set aside and substituted with an order that he serve the term already served
3.The appellant shall be set at liberty forthwith, unless otherwise lawfully held

On appeal from: High Court of Kenya at Nyamira; HCCRA No. 16 of 2015
Jurisdiction invoked: First appellate criminal jurisdiction (appeal from High Court judgment in HCCRA No. 16 of 2015); no specific constitutional or statutory provision is cited in the judgment.

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Monyoncho v Republic", Case Analysis (2022). Criminal Appeal 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1249/eng@2022-11-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.